Citation Nr: 0715908
Decision Date: 05/30/07 Archive Date: 06/11/07
DOCKET NO. 04-38 235 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Atlanta,
Georgia
THE ISSUE
Entitlement to an initial evaluation in excess of 10 percent
for a residual scar from a left knee laceration.
REPRESENTATION
Appellant represented by: Georgia Department of Veterans
Services
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
M. Donovan, Associate Counsel
INTRODUCTION
The veteran served on active duty from August 1967 to May
1971.
This case comes before the Board of Veterans' Appeals (Board)
on appeal from a September 2002 rating decision issued by the
Department of Veterans Affairs (VA) Regional Office (RO) in
Atlanta, Georgia, which granted service connection for a scar
as a residual of left knee laceration, evaluated as
noncompensable, effective April 15, 2002.
A September 2004 rating decision granted an increased initial
evaluation of 10 percent for the residual left knee scar.
Despite the grant of this increased evaluation, the veteran
has not been awarded the highest possible evaluation. As a
result, he is presumed to be seeking the maximum possible
evaluation and his claim remains in appellate status. A.B.
v. Brown, 6 Vet. App. 35 (1993).
In his November 2004 Form 9 (substantive appeal) the veteran
disagreed with the effective date of the 10 percent
evaluation assigned for the left knee scar. In August 2006
the RO issued a statement of the case (SOC) on the issue of
entitlement to an earlier effective date for the evaluation
assigned to the service connected residual scar from the left
knee laceration. The veteran did not submit a substantive
appeal regarding this issue and it has not been certified for
appellate consideration. Thus, this issue is not before the
Board. 38 C.F.R. § 20.200 (2006).
A March 2005 rating decision granted service connection for
chondromalacia, left knee, status post injury, with minimal
osteoarthritic changes. In an August 2005 letter the veteran
stated that he still took exception to two issues, the fact
that nerve damage and sensitivity, muscle and tendon
weakness, and lack of mobility of the kneecap had not been
considered, and that he had not been awarded a 10 percent
disability evaluation from May 1971. In October 2005 the RO
informed the veteran that his August 2005 statements had not
been accepted as a notice of disagreement (NOD) because he
did not identify the issues with which he disagreed. He was
asked to submit an NOD identifying which issues he wanted to
appeal. The veteran did not respond.
In February 2007 the veteran testified before the undersigned
sitting at the RO (Travel Board hearing). A transcript of
that hearing is of record.
The appeal is REMANDED to the RO via the Appeals Management
Center (AMC), in Washington, DC. VA will notify the
appellant if further action is required.
REMAND
The veteran's left knee scar was evaluated at VA examination
in December 2004. The veteran is entitled to a new VA
examination where there is evidence (including his
statements) that the condition has worsened since the last
examination. Snuffer v. Gober, 10 Vet. App. 400 (1997);
Caffrey v. Brown, 6 Vet. App. 377 (1994); VAOPGCPREC 11-95
(1995).
At the December 2004 VA examination, the veteran described
his current symptoms regarding the left knee scar as
sensitivity to touch. The functional impairment caused by
the scar was described as "touching." Examination revealed
a level, irregular scar at the left knee medially, and
anteriorly, measuring 21cm by 1cm. The examiner noted that
there was tenderness and disfigurement, but no ulceration,
adherence, instability, tissue loss, keloid formation,
hypopigmentation, hyperpigmentation, abnormal texture, or
limitation of motion.
At the same examination, the veteran's musculoskeletal
problems with the left knee were evaluated. The examination
report notes that these problems are the result of the same
in-service motor vehicle accident which caused the service
connected left knee scar. In describing the general history
of his condition, the veteran reported that his left knee was
painful, tended to lock in place, and gave out, but neither
he nor the examiner specifically attributed these symptoms to
either the left knee scar or the musculoskeletal problems.
The examiner described the functional impairment resulting
from the musculoskeletal problems in the left knee as an
inability to work on hand and knees and difficulty going up
and down stairs and using a ladder.
At the February 2007 Travel Board hearing, the veteran
described constant moderate pain in the left knee and
difficulty going up and down stairs and using a ladder. He
reported that he wore a brace and used a cane. He stated
that his knee locked up and gave out, and that he had fallen
because of his knee. The veteran stated that these symptoms
were related to his left knee scar, separate from
chondromalacia of the left knee. He added that the left knee
scar was painful when pressure was applied and that he was
unable to walk for long periods of time.
In light of the fact that the only functional impairment
regarding the left knee scar described at the December 2004
VA examination was touching, the veteran's statements that
his left knee scar causes locking, giving out, difficulty
using stairs or ladders, and an inability to walk for long
periods of time report a worsening of the left knee scar
disability. As such, the veteran is entitled to a VA
examination to evaluate the current severity of his service
connected disability.
A determination of the current severity of the veteran's left
knee scar is especially important in this case because of the
veteran's separately service connected chondromalacia of the
left knee, the symptoms of which cannot be used as grounds
for increasing the evaluation for the left knee scar, as the
veteran cannot receive additional compensation for the same
symptoms. See 38 C.F.R. § 4.14; see also Brady v. Brown, 4
Vet. App. 203, 206 (1993) (a claimant may not be compensated
twice for the same symptomatology as "such a result would
overcompensate the claimant for the actual impairment of his
earning capacity.").
The Veterans Claims Assistance Act of 2000 (VCAA) describes
VA's duty to notify and assist claimants in substantiating a
claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103,
5103A, 5107, 5126 (West 2002 & Supp. 2005); 38 C.F.R.
§§ 3.102, 3.156(a), 3.159, 3.326(a) (2006).
It does not appear that the veteran has been provided VCAA
notice on the issue of entitlement to an increased initial
evaluation for his left knee scar. In Dingess/Hartman v.
Nicholson, 19 Vet. App. 473 (2006), the United States Court
of Appeals for Veterans Claims (Court) held that once service
connection is granted and an effective date and rating have
been assigned, the claim is substantiated and further VCAA
notice is not needed. While the Court's holding in Dingess,
suggests that such notice is not required, because the
service connection claim has been substantiated, since the
claim is being remanded for other reasons, additional notice
is appropriate.
Accordingly, the case is REMANDED for the following action:
1. Send the veteran a VCAA notice letter
in accordance with 38 U.S.C.A. § 5103(a)
and 38 C.F.R. § 3.159(b), specifically
informing him of the information and
evidence required to substantiate his
claim
2. Schedule the veteran for a VA
examination of his left knee scar. The
examiner should review the claims file
and note such review in the examination
report or in an addendum.
The examiner should provide a description
of the scar, to include the size of the
scar in square inches or square
centimeters. The examiner should
indicate whether the left knee scar
causes any limitation of motion or other
limitation of function of an affected
body part. If so, the examiner should
describe in detail the limitation(s) and
extent and severity thereof. If the left
knee scar does not cause limited motion
or other limitation of function of an
affected body part, the examiner should
specifically so state.
In describing the veteran's left knee
scar, the examiner should, if possible,
indicate what specific symptoms are
attributable to the service connected
left knee scar as opposed to symptoms
referable to any other service connected
or non-service connected disability, to
include chondromalacia of the left knee.
If it is not possible or feasible to make
this differentiation, the examiner should
so state.
3. After ensuring the development is
complete, re-adjudicate the claim. If
the claim remains denied, issue a
supplemental statement of the case before
returning the claim to the Board, if
otherwise in order.
Thereafter, the case should be returned to the Board for
further appellate consideration, if otherwise in order. The
Board intimates no opinion as to the outcome of this case.
The appellant need take no action until so informed. The
purpose of this REMAND is to ensure compliance with due
process considerations.
The purpose of the examination requested in this remand is to
obtain information or evidence (or both) which may be
dispositive of the appeal. Therefore, the veteran is hereby
placed on notice that pursuant to 38 C.F.R. § 3.655 (2006)
failure to cooperate by attending the requested VA
examination may result in an adverse determination. See
Connolly v. Derwinski, 1 Vet. App. 566, 569 (1991).
The appellant has the right to submit additional evidence and
argument on the matter that the Board has remanded.
Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate action must be handled in an expeditious manner.
See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2006).
_________________________________________________
C. TRUEBA
Acting Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.
38 C.F.R. § 20.1100(b) (2006).